9.  The applicant was born in 1969 and lives in Scarborough.
10.  On 7 September 2000 the applicant was convicted by a jury at Nottingham Crown Court of the manslaughter of her four-month-old son, Patrick. She was sentenced to three years’ imprisonment.
11.  Evidence was given at her trial by expert medical witnesses who described how the injuries suffered by her son were consistent with shaking or an impact. The conviction was based on the accepted hypothesis concerning “shaken baby syndrome”, also known as “non-accidental head injury” (NAHI), to the effect that the finding of a triad of intracranial injuries consisting of encephalopathy, subdural haemorrhages and retinal haemorrhages were either diagnostic of, or at least very strongly suggestive of, the use of unlawful force. All three were present in the case of the death of the applicant’s son.
12.  The applicant did not, immediately after her trial, appeal against her conviction.
13.  Following a review by the authorities of cases in which expert medical evidence had been relied upon, the applicant applied for, and was granted, leave to appeal out of time. The appeal was founded on a challenge to the accepted hypothesis concerning NAHI on the basis that new medical evidence suggested that the triad of injuries could be attributed to a cause other than NAHI.
14.  On an unknown date, the applicant was released from prison, having served sixteen months of her sentence.
15.  In the context of the appeal proceedings, the Court of Appeal Criminal Division (CACD) heard evidence from a number of medical experts. On 21 July 2005 the court quashed the applicant’s conviction on the ground that it was unsafe.
16.  As to its role in reviewing the evidence on appeal, the court noted:
“70.  ... [O]n general issues of this nature, where there is a genuine difference between two reputable medical opinions, in our judgment, the Court of Criminal Appeal will not usually be the appropriate forum for these issues to be resolved. The focus of this Court will be (as ours has been) to decide the safety of the conviction bearing in mind the test in fresh evidence appeals which we set out below. That is not to say that such differences cannot be resolved at trial. At trial, when such issues arise, it will be for the jury (in a criminal trial) and the judge (in a civil trial) to resolve them as issues of fact on all the available evidence in the case ...”
17.  Turning to consider the facts of the applicant’s case, the court again emphasised that its task was to decide whether the conviction was safe. It also noted that, the case being of some difficulty, it was important to bear in mind the test set out by Lord Bingham of Cornhill in R v. Pendleton (see paragraph 47 below) of asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. It continued:
“143.  ... [T]he evidence at trial and the evidence adduced by the Crown in this appeal, provide a strong case against [the applicant]. [Counsel for the Crown’s] submission that the triad is established and that any attempt to undermine it is based on speculation is a powerful one. Nevertheless strong as is the case against [the applicant] we have concerns about the safety of the conviction.”
18.  The court reviewed the medical evidence of the experts on behalf of the applicant and the Crown, noting the differences between their views, and found:
“144.  First, in order to dismiss the appeal, we would have to accede to [counsel for the Crown’s] submission that we should reject [expert for the applicant] Dr Squier’s evidence in its entirety ... 145.  ... We are far from saying that we accept Dr Squier’s evidence in preference to that of Dr Rorke-Adams [expert for the Crown]. Indeed, in view of the weight of evidence disputing her opinions we have reservations about whether Dr Squier can be right. But equally, in all the circumstances of this case, the differences between them are ones which the jury would have had to have assessed in the light of all the evidence in the case. 146.  Secondly, although the evidence of the findings of retinal haemorrhages is powerful supporting evidence of shaking, on its own it is not diagnostic of shaking. If the subdural haemorrhages are undermined, the retinal haemorrhages findings will not fill the gap although we recognise that both can be considered together. There is also the issue of whether Dr Adams [for the applicant] may be correct in her view that fixed and dilated pupils seen by the ambulance crew was a sign of brain swelling at that time. 147.  Thirdly, although as we have already stated the amount of force required to cause the triad of injuries will in most cases be more than just rough handling, the evidence suggests that there will be rare cases when injuries will not correspond to the amount of force used. It is at least possible that in such rare cases (maybe very rare cases) very little force will cause catastrophic injuries.”
19.  Emphasising the importance of the clinical evidence in the case, the court continued:
“150.  ... In summary, [the applicant] was described as a careful and caring mother. She called out Dr Barber late at night because of her concerns for Patrick. Dr Barber described her as being calm and controlled at that time. The prosecution’s case at trial was that in the interval between Dr Barber leaving the house and 2.30am when [the applicant] telephoned the emergency services she must have violently and unlawfully shaken Patrick. In our judgment this history combined with the absence of findings of bruises to any part of the head, face or body; and the absence of fractures or any other sign apart from the triad of injuries, does not fit easily with the Crown’s case of an unlawful assault based on the triad of injuries, itself a hypothesis.”
20.  The court concluded:
“152.  As we have said the Crown’s evidence and arguments are powerful. We are conscious that the witnesses called on behalf of [the applicant] have not identified to our satisfaction a specific alternative cause of Patrick’s injuries. But, in this appeal the triad stands alone and in our judgment the clinical evidence points away from NAHI. Here the triad itself may be uncertain for the reasons already expressed. In any event, on our view of the evidence in these appeals, the mere presence of the triad on its own cannot automatically or necessarily lead to a diagnosis of NAHI. 153.  The central issue at trial was whether [the applicant] caused the death of her son, Patrick, by the use of unlawful force. We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount of force necessary to cause the triad, might reasonably have affected the jury’s decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed. The conviction will be quashed.”
21.  No retrial was ordered.
22.  Following the quashing of the conviction, the applicant applied to the Secretary of State for compensation for a miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988 (“the 1988 Act” – see paragraphs 49-53 below).
23.  By a letter of 31 May 2006, the applicant’s solicitors were informed that the Secretary of State did not consider that a right to compensation arose in her case. The letter noted:
“The Home Secretary is of the opinion that your client does not fulfil the statutory requirements of Section 133(1) of the Act because the medical evidence considered by the Court of Appeal did not disclose a new fact ... The Home Secretary’s view is that this new medical evidence about the degree of force required to cause a triad of injuries is not a new or newly discovered fact; rather it shows the changing medical opinion about the degree of force needed to cause a triad and is properly categorised as new evidence of facts known all along rather than new facts.”
24.  The applicant subsequently brought judicial review proceedings challenging the decision to refuse to pay her compensation under section 133 of the 1988 Act. She contended that she met the criteria for compensation set out in that section.
25.  The claim was dismissed by the High Court on 10 December 2007. The judge began by considering the approach of the CACD in quashing the applicant’s conviction, drawing the following conclusions:
“21.  ... (1) [T]he court applied the Pendleton test and did not decide for itself the complex medical issues raised by the evidence which it heard; (2) all that it decided was that the evidence which it had heard could, if accepted by the jury, have led a jury to acquit the claimant; (3) notwithstanding that conclusion, the court was of the opinion that the Crown’s case was a strong one. I do not understand that conclusion to be consistent with the proposition that at the conclusion of a new trial, on that evidence, a trial judge would have been obliged to direct the jury to acquit the claimant; (4) the material considered by the Court of Appeal which led to its conclusion was a complex mixture of fact and opinion.”
26.  He observed that the CACD did not order a retrial, but considered that this was not significant as the applicant had, by that time, served her sentence and any retrial would have been pointless and would not have been in the public interest.
27.  Turning to consider the applicant’s compensation claim, the judge noted that although it was accepted by both parties that the applicant had suffered punishment as a result of the conviction which had subsequently been reversed, the remaining elements of her claim under section 133 were in dispute. He continued:
“29.  The interpretation of Section 133 was considered by the House of Lords in R (on the application of Mullen) v Secretary of State for the Home Department [[2004] UKHL 18, see paragraphs 54-62 below]. There was a well known divergence of view between Lord Bingham and Lord Steyn. The facts of the case are far removed from the present case and the ratio decidendi of the decision does not assist in the resolution of this claim. It was simply that because the ground upon which Mullen’s conviction was quashed did not relate to the investigation or the conduct of the trial or the evidence led at it, so he was not entitled to compensation under Section 133. It was a striking feature of this case that at no stage did he maintain that he was in fact innocent of the crime of which he had been convicted.”
28.  The judge accepted that the ground on which compensation had been refused by the Secretary of State disclosed an excessively narrow view of what was a new or newly discovered fact. He considered that the distinction between medical opinion and fact was exceptionally hard to draw and that it would be seriously unjust to a claimant to refuse a claim for compensation merely because the claim was based upon a change in medical opinion as well as in clinical findings. However, that finding was not determinative of the applicant’s claim, as there was no point in sending it back to the Secretary of State for reconsideration if he was bound to reach the same decision on the compensation application for a different reason.
29.  The judge recorded the submission of counsel for the applicant that it was not necessary for her to show that she was innocent of the charge of which she had been convicted; and his concession that it was not arguable before the High Court that if all the applicant could show was that there was a doubt about guilt which could or should have led a jury to acquit, the claim for compensation should be allowed. The judge considered this concession inevitable and right in principle in the light of observations made by the Lord Chief Justice in the case of R (on the application of Clibery) v. Secretary of State for the Home Department [2007] EWHC 1855 (Admin), which he cited as follows:
“41.  ... Lord Bingham [in R (Mullen)] ... considered two different situations, each of which he considered fell within the description of ‘miscarriage of justice’ in Section 133 of the 1988 Act. The first is where new facts demonstrate that the claimant was innocent of the offence of which he was convicted. In such circumstances, it is possible to say that if the facts in question had been before the jury, he would not have been convicted. The second is where there are acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial that it is possible to say that he was ‘wrongly convicted’. In such circumstances it is appropriate to say that the claimant should not have been convicted.”
30.  The judge continued:
“42.  Mr Southey [for the applicant] has not addressed me on the Strasbourg learning on the presumption of innocence. I make no decision by reference to that. He reserves his position on that for another day. Subject to that it seems to me to be outwith the statutory language to describe a case in which a jury might have reached a different conclusion as showing ‘beyond reasonable doubt that there has been a miscarriage of justice’. Lord Bingham’s observations about miscarriages of process seem to me to have no bearing on evidential miscarriage of justice cases. In evidential miscarriage of justice cases what is required is that the new or newly discovered fact must show beyond a reasonable doubt that there has been a miscarriage of justice. That is not shown where all that is established is that, if new evidence had been available, a properly directed jury might have reached a different conclusion.”
31.  The judge further observed:
“44.  Take a case in which a defendant gives no account at interview or at trial – and in which the only evidence against him is that of a single witness – who is convicted on the basis of that evidence together with the supporting evidence of his own silence. If the evidence of the sole witness were subsequently shown to be wholly wrong, whether due to improper motive by the witness or simply by mistake, it is at the least arguable that there would have been in that claimant’s case a miscarriage of justice even though nobody would ever have decided, and indeed might never know, whether the defendant was in fact guilty of the charge. But that proposition cannot avail this claimant. For – as the recital of the medical evidence heard by the Court of Appeal and by the trial jury demonstrates – there was powerful evidence against this claimant. At the conclusion of the prosecution case or indeed at the conclusion of all the evidence, on the view of the Court of Appeal expressly stated, it would have been for the jury to determine the issue. ...”
32.  He concluded:
“45.  As the passages which I have cited from the judgment of the Court of Appeal [in Clibery] demonstrate, all that it decided was that the new evidence created the possibility that when taken with the evidence given at the trial a jury might properly acquit the claimant. That falls well short of demonstrating beyond reasonable doubt that there had been a miscarriage of justice in this case. Accordingly and for that simple reason, I dismiss this claim.”
33.  The applicant appealed. On 15 July 2008 the Court of Appeal Civil Division dismissed the appeal. Giving judgment for the court, Lord Justice Hughes began by summarising the approach of the CACD in quashing the applicant’s conviction. He referred to the conclusions expressed in the CACD judgment, to the effect that although there remained a strong case against the applicant the court had concerns about the safety of the conviction. He continued:
“17.  ... The decision as to the safety of a conviction in a fresh evidence case is for the court itself and is not what effect the fresh evidence would have on the mind of a jury, but in a difficult case the court may find it helpful to test its provisional view by asking whether the evidence now available might reasonably have affected the decision of the trial jury to convict. In the present case it is clear that the CACD adopted this latter approach and relied significantly for its decision on what might have been the impact of the medical evidence which it had heard if such evidence had been available to the jury ... [T]here can be no doubt that the court regarded the proper interpretation of the clinical findings in this case as a matter which it ought not itself to resolve, but rather as one which could and should be resolved by a jury on hearing the competing expert opinions. Adopting that approach, it decided that the evidence which was now available might, if it had been heard by the jury, have led to a different result.”
34.  As to the decision of the CACD not to order a retrial, the judge commented:
“18.  ... [B]y the time of the appeal the appellant had served her sentence and a great deal of time had passed. Understandably, in those circumstances, there was no application by the Crown for a re-trial, as there would no doubt have been had the conviction been quashed for these reasons shortly after trial.”
35.  The judge considered the meaning of “miscarriage of justice” and summarised the difference of approach between Lord Bingham and Lord Steyn in R (Mullen) as follows:
“21.  ... Lord Steyn held ... that in this context ‘miscarriage of justice’ means that the innocence of the defendant is acknowledged. Lord Bingham ... expressed no concluded opinion on this question, but made it clear that he ‘hesitated to accept’ this interpretation. For his part, he was ready to accept that ‘miscarriage of justice’ extended in this context to serious failures of the trial process, whether or not innocence was demonstrated. ...”
36.  However, he explained that given the unanimous view of the House of Lords that Mr Mullen’s claim failed, the different interpretations of Lord Steyn and Lord Bingham were not strictly necessary to the decision.
37.  The judge noted that counsel for the applicant accepted that the applicant’s innocence had not been demonstrated beyond reasonable doubt, or conclusively, by the decision of the CACD to quash the conviction. He therefore observed that if Lord Steyn’s interpretation of section 133 of the 1988 Act was correct, the applicant’s claim failed. However, the applicant’s submission was that Lord Bingham’s approach should be adopted and that on this interpretation, her claim succeeded because something went seriously wrong with the trial process in her case. Reviewing Lord Bingham’s comment in R (Mullen), the judge noted:
“26.  ... [I]t is plain that the critical feature of the extended interpretation of ‘miscarriage of justice’ which [Lord Bingham] was prepared to contemplate is that ‘something has gone seriously wrong in ... the conduct of the trial’ ...”
38.  The judge continued:
“27.  In the present case there was nothing which went wrong with the conduct of the trial, whether seriously or otherwise. In speaking of ‘flawed expert evidence’ it is clear that Lord Bingham cannot have been contemplating evidence which was conscientiously given and based upon sound expertise at the time of trial. The most that could be said against the expert evidence given at this trial is that it might need adjustment in the light of new medical research and/or thinking. In any event, the medical evidence given at time of trial has not been demonstrated to be flawed, even in this limited sense. As the passages from the judgment of the CACD which I have cited show, this court’s decision went no further than to say that the differences of medical opinion needed to be resolved by a jury. Nor was this a case in which the jury was presented with a medical consensus that the triad was diagnostic of unlawful killing. The medical evidence called for the appellant accepted that it was consistent with unlawful killing but disputed that it necessarily led to that conclusion. The appeal was allowed because over the intervening years more possible force had emerged for the opinion voiced on the appellant’s behalf and now supported by Dr Squier’s evidence, which the jury had not heard and which the CACD, despite plain doubts about it, was not in a position wholly to dismiss. 28.  For the same reasons, I have no doubt that the decision of the CACD does not begin to carry the implication that there was no case for the appellant to answer once the fresh evidence was available. ...”
39.  The judge went on to discuss the situations in which a disagreement between distinguished experts would lead to the conclusion that it would be unwise or unsafe to proceed with the trial. He noted that there was no authority to suggest that where experts disagreed as to the conclusions which could be drawn from the injuries, the case ought to be withdrawn from the jury. On the contrary he considered that the resolution of such disagreements, bearing in mind the criminal standard of proof, was an important part of the functions of a jury. He therefore concluded:
“29.  In the present case, there was no basis for saying that, on the new evidence, there was no case to go to a jury. Moreover, if the court had meant to say that there was (now) no case to answer, it would have said so in plain terms. On the contrary, its oft-repeated statements that the evaluation of the rival medical opinions would be a matter for the jury are wholly inconsistent with a finding that there was no case to answer on the new state of medical evidence. Likewise, the posing of the Pendleton question by way of check is inconsistent with a finding that the case should never have reached the jury if the fresh evidence had been known. 30.  In those circumstances, I reach the clear conclusion that, even on the interpretation of section 133 which Lord Bingham favoured, this case cannot succeed. ...”
40.  Although in the circumstances it was not necessary to resolve the difference of construction of section 133 articulated by Lord Bingham and Lord Steyn, the judge nonetheless expressed a preference for Lord Steyn’s approach, noting, inter alia:
“40.  iii)  Whilst I agree of course that the CACD does not ordinarily address the question of guilt or innocence, but only the safety of the conviction, those cases where the innocence of the convicted defendant is genuinely demonstrated beyond reasonable doubt by new or newly discovered fact will be identifiable in that court and the judgment will, in virtually every case, make plain that this is so ... [I]t seems to me [that] the operation of the section poses very real difficulties if the broader definition [of miscarriage of justice] is adopted, for then it becomes necessary to ask in every case of conviction quashed on grounds of fresh evidence whether it satisfies the section 133 criterion of miscarriage proved beyond reasonable doubt or is merely a case of doubt raised to the extent that the conviction is unsafe. If, however, miscarriage of justice means the establishment of innocence beyond reasonable doubt, there will usually be no difficulty in those cases being apparent from the judgments of the CACD.”
41.  As regards the applicant’s submissions based on the presumption of innocence, the judge referred to the Court’s judgments in Sekanina v. Austria, 25 August 1993, Series A no. 266‑A; Rushiti v. Austria, no. 28389/95, 21 March 2000; Weixelbraun v. Austria, no. 33730/96, 20 December 2001; O. v. Norway, no. 29327/95, ECHR 2003‑II; and Hammern v. Norway, no. 30287/96, 11 February 2003. He found that they did not lead to the conclusion that the applicant was entitled to compensation under section 133, for the following reasons:
“35.  ... i)  None of these cases considered the ICCPR [International Covenant on Civil and Political Rights 1966 – see paragraph 65 below] scheme for payment of compensation for conclusively proved miscarriage of justice, which is what is in issue here.
ii)  Article 14 of the ICCPR juxtaposes within it both the provision for compensation in article 14(6), now under consideration, and, in article 14(2), a provision in terms identical to article 6(2) ECHR. Yet by article 14(6) it plainly requires something more than the quashing of the conviction before the right to compensation arises, namely that a miscarriage of justice be conclusively demonstrated by new or newly discovered facts. It does not seem to me that these provisions could co-exist in these terms if the consequence of article 14(2) was that nothing more could be required for compensation beyond the quashing of the conviction on the basis of new fact. ...
iii)  Whilst the ICCPR is a treaty independent of the European Convention, provisions identical to article 14(6) are to be found in Protocol 7 to the ECHR, article 3. For the same reasons, it is inconceivable that article 3 could be in the terms it is if article 6(2) of the main Convention meant that compensation necessarily followed the quashing of a conviction on the basis of fresh evidence.
iv)  As Lord Steyn pointed out in Mullen ..., the distinction between the Austrian domestic scheme then under consideration and the international scheme under Protocol 7 article 3 was one to which the Strasbourg Court carefully drew attention in Sekanina ... at paragraph 25 ...
v)  It is plain from the Austrian and Norwegian cases that the line between the application and non-application of article 6(2) is frequently a fine one. In Sekanina the Commission ... expressly stated that article 6(2) ‘naturally’ does not prevent the same facts being relied upon, post acquittal on the merits, to found a civil claim against the defendant, and this must occur routinely, as also must subsequent child care cases. Yet in Orr v. Norway (no. 31283/04, 15 May 2008) the Court held that article 6(2) disabled the complainant in a rape case from recovering compensation post acquittal notwithstanding the different standard of proof attributable to the civil claim; the decision was grounded upon the manner in which the court expressed itself in dealing with the latter question.
vi)  The basis for the decisions in the Austrian and Norwegian cases was the closeness of the link between the decision to acquit on the merits and the decision as to compensation. In the Austrian cases the compensation decision was within the jurisdiction of the criminal court, albeit it was usually made by a differently constituted criminal court some time after the acquittal, as for example a confiscation order may be in England. Moreover, the court proceeded in part by analysing the decision of the trial jury. In the Norwegian cases the acquittal was made by a court composed of judges and jury, and the same judges went on more or less immediately to consider compensation. ...
vii)  By contrast, compensation in a fresh evidence case under article 14(6) and section 133 is not linked to any acquittal on the merits. Rather, it is to be paid when not only has there been a reversal of the conviction but also where the additional factor exists of a miscarriage of justice demonstrated beyond reasonable doubt, or conclusively, to have taken place.
viii)  It can no doubt be said ... that just as compensation for acquittal under the Norwegian scheme was described by the Court as a procedure whose object was ‘to establish whether the State had a financial obligation to compensate the burden it had created for the ... person by the proceedings it had instituted against him’ (see O v. Norway ...), so too is the scheme for compensation for miscarriage of justice under article 14(6). But that is to beg the question when the scheme in question creates such an obligation. If article 6(2) were to apply to claims under the scheme here under consideration, there would be no reason in logic or fairness to distinguish between those whose convictions are quashed on grounds of fresh evidence and those whose convictions are quashed on other grounds; each would be in the position of being able to rely on the presumption of innocence. Indeed, there would be no obvious reason for distinguishing between those who are convicted but whose convictions are quashed, and those who are acquitted at trial. But it is clear that article 14(6) does not provide for compensation to be paid except in the limited circumstances to which it refers.
ix)  In Mullen, Lord Steyn held ... that article 6(2) ECHR did not apply to the special rules created by article 14(6) ICCPR. Lord Bingham’s decision was that ... the Austrian and Norwegian cases ... could not assist Mullen since his ‘acquittal’ was unrelated to the merits of the accusation against him. ...”
42.  The applicant sought leave to appeal to the House of Lords. Leave was refused on 11 December 2008.